Ch. 55 Note
NOTE: 2005 Wis. Act 264
made major revisions to this chapter and contains extensive explanatory notes.
Ch. 55 Cross-reference
See s. 46.011
for definitions applicable to chs. 46
, and 58
Declaration of policy.
The legislature recognizes that many citizens of the state, because of serious and persistent mental illness, degenerative brain disorder, developmental disabilities, or other like incapacities, are in need of protective services or protective placement. Except as provided in s. 49.45 (30m) (a)
, the protective services or protective placement should, to the maximum degree of feasibility under programs, services and resources that the county board of supervisors or the Milwaukee County mental health board, as applicable, is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds, allow the individual the same rights as other citizens, and at the same time protect the individual from financial exploitation, abuse, neglect, and self-neglect. This chapter is designed to establish those protective services and protective placements, to assure their availability to all individuals when in need of them, and to place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, financial exploitation, neglect, and self-neglect.
Neither a district attorney nor a corporation counsel has a duty to petition for protective placement, determination of incompetency, or otherwise intervene when an apparently competent elderly person with a life threatening illness chooses to remain at home under a doctor's and family care rather than seeking a higher level of care that might extend her life. 74 Atty. Gen. 188
Landmark Reforms Signed Into Law: Guardianship and Adult Protective Services. Abramson & Raymond. Wis. Law. Aug. 2006.
In this chapter:
“Activated power of attorney for health care" means a power of attorney for health care that has taken effect in the manner specified in s. 155.05 (2)
“Adult at risk" means any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.
“Adult-at-risk agency" means the agency designated by the county board of supervisors under s. 55.043 (1d)
to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under s. 55.043
“Agency" means a county department or any public or private board, corporation or association which is concerned with the specific needs and problems of developmentally disabled, mentally ill, alcoholic, drug dependent or aging persons.
“Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.
“Developmental disability" means a disability attributable to intellectual disability, cerebral palsy, epilepsy, autism or another neurological condition closely related to an intellectual disability or requiring treatment similar to that required for individuals with an intellectual disability, which has continued or can be expected to continue indefinitely, substantially impairs an individual from adequately providing for his or her own care or custody, and constitutes a substantial handicap to the afflicted individual. The term does not include dementia that is primarily caused by degenerative brain disorder.
“False representation" includes a promise that is made with the intent not to fulfill the promise.
“Interested person" means any of the following:
An adult relative or friend of an individual sought to be protected under this chapter.
Any official or representative of a public or private agency, corporation or association concerned with the individual's welfare.
“Mental illness" means mental disease to the extent that an afflicted person requires care, treatment or custody for his or her own welfare or the welfare of others or of the community.
“Other like incapacities" means those conditions incurred at any age which are the result of accident, organic brain damage, mental or physical disability or continued consumption or absorption of substances, producing a condition which substantially impairs an individual from adequately providing for his or her care or custody.
“Protective placement" means a placement that is made to provide for the care and custody of an individual.
“Protective placement facility" means a facility to which a court may under s. 55.12
order an individual to be provided protective placement for the primary purpose of residential care and custody.
“Protective placement unit" means a ward, wing, or other designated part of a protective placement facility.
“Protective services" includes any of the following:
Identification of individuals in need of services.
Any services that, when provided to an individual with developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacity, keep the individual safe from abuse, financial exploitation, neglect, or self-neglect or prevent the individual from experiencing deterioration or from inflicting harm on himself or herself or another person.
“Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20)
, that is used to treat or manage a psychiatric symptom or challenging behavior.
“Residence" means the voluntary concurrence of an individual's physical presence with his or her intent to remain in a place of fixed habitation. Physical presence is prima facie evidence of intent to remain.
“Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. “Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
“Voluntary" means according to an individual's free choice, if competent, or by choice of a guardian, if adjudicated incompetent.
See also s. 46.011
for definitions applicable to chs. 46
, and 58
The guardian ad litem is an interested person. A guardian ad litem appointed by the circuit court to represent the ward's best interest becomes an official of a public agency concerned with the person's welfare by virtue of that appointment and falls within the definition of “interested person" in the protective placement system of this chapter. Linda L. v. Collis, 2006 WI App 105
, 294 Wis. 2d 637
, 718 N.W.2d 205
Alzheimer's disease is one type of a degenerative brain disorder. Chapter 51 includes the definition of degenerative brain disorder only to specifically exclude it from the chapter's authority, whereas the definition under this chapter is used to include it in the scope of authority granted under this chapter. Rehabilitation is a necessary element of treatment under ch. 51. Because there are no techniques that can be employed to bring about rehabilitation from Alzheimer's disease, an individual with the disease cannot be rehabilitated. Accordingly, an Alzheimer's patient is not a proper subject for ch. 51 treatment. Fond du Lac County v. Helen E.F., 2011 WI App 72
, 333 Wis. 2d 740
, 798 N.W.2d 707
Protective services and protective placement: duties. 55.02(1)(a)(a)
The department shall do all of the following:
Cooperate with county departments to develop and operate a coordinated, statewide system for protective services and protective placement. The protective services and protective placement system shall be designed to encourage independent living and to avoid protective placement whenever possible.
Monitor and supervise the implementation and operation of the protective services and protective placement system.
Provide technical assistance to county departments providing protective services and protective placement.
Evaluate the protective services and protective placement system.
The department may provide protective services and protective placement directly or contract for the provision of protective services or protective placement.
The chairperson of each county board of supervisors shall designate a county department under s. 46.215
, or 51.437
that is providing services in the county on its own or through a joint mechanism with another county department or county to have the responsibility for planning for the provision of protective services and protective placement and for directly providing protective services, protective placement, or both, or entering into a contract under s. 46.036
with a responsible agency for the provision of protective services, protective placement, or both.
In addition to the responsibilities specified in par. (a)
, the county department shall:
Monitor and evaluate protective services and protective placements.
Prepare and submit reports required by the department, or by a court if protective services or protective placement are ordered by a court.
Develop requirements for submittal by guardians of the person of reports to the county department under s. 54.25 (1) (a)
Designate at least one appropriate medical facility or protective placement facility as an intake facility for the purpose of emergency protective placements under s. 55.135
The corporation counsel of the county in which the petition is brought may or, if requested by the court, shall assist in conducting proceedings under this chapter.
Status of guardian. 55.03(1)(1)
Agency as both guardian and provider prohibited.
No agency acting as a guardian appointed under s. 48.9795
, ch. 54
, 2017 stats., or ch. 880
, 2003 stats., may be a provider of protective services or protective placement for its ward under this chapter.
Transfer of guardianship and legal custody.
Nothing in this chapter may be construed to prohibit the transfer of guardianship and legal custody under s. 48.427
or s. 48.43
Guardian authority and responsibility applicable to parent of minor.
Where any responsibility or authority is created under this chapter upon or in relation to a guardian, the responsibility or authority is deemed to apply to a parent or person in the place of a parent in the case of a minor who is or who is alleged to have a developmental disability.
Guardian authority for making protective placement.
No guardian or temporary guardian may make a permanent protective placement of his or her ward unless ordered by a court under s. 55.12
, but a guardian or temporary guardian may admit a ward to certain residential facilities under s. 55.055
or make an emergency protective placement under s. 55.135
Adult-at-risk agency. 55.043(1d)(1d)
Adult-at-risk agency designation.
Each county board shall designate an agency as the adult-at-risk agency for the purposes of this section.
Each adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an adult-at-risk abuse reporting system to carry out the purposes of this section. Each adult-at-risk agency shall enter into a memorandum of understanding regarding the operation of the system with the county department under s. 46.215
and with any private or public agency, including a county department under s. 51.42
, within the county that is participating in the adult-at-risk abuse reporting system. The memorandum of understanding shall, at a minimum, identify the agencies that are responsible for the investigation of reports of abuse, financial exploitation, neglect, or self-neglect of adults at risk and for the provision of specific direct services.
Each adult-at-risk agency shall receive reports of abuse, financial exploitation, neglect, or self-neglect of adults at risk.
Each adult-at-risk agency shall publicize the existence of an adult-at-risk abuse reporting system in the county and shall provide a publicized telephone number that can be used by persons wishing to report suspected cases of abuse, financial exploitation, neglect, or self-neglect of adults at risk. Each adult-at-risk agency shall also provide a telephone number that can be used by persons to make reports after the adult-at-risk agency's regular business hours.
The following persons shall file reports as specified in par. (b)